[PDF] Resolution Letter: Harvard Law School: OCR Case #01-11-2002

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itiveness by fostering educational excellence and ensuring equal access.

UNITED STATES DEPARTMENT OF EDUCATION

OFFICE FOR CIVIL RIGHTS, REGION I

5 POST OFFICE SQUARE, 8th FLOOR

BOSTON, MASSACHUSETTS 02109-3921

December 30, 2014

Martha C. Minow, Dean

Harvard Law School

Griswold 200

1525 Massachusetts Avenue

Cambridge, Massachusetts 02138 Re: Complaint No. 01-11-2002 Harvard Law School

Dear Dean Minow:

This letter is to inform you that the U.S. Department of Education, Office for Civil Rights (OCR) has completed its investigation of the above-referenced complaint, against Harvard Law School (Law School), alleging discrimination based on sex. The Law School and Harvard University (University) have agreed to a Resolution Agreement (enclosed), which addresses compliance concerns identified by OCR during its investigation relating to the Law School. OCR will monitor the signed Resolution Agreement until the Law School and University have complied 1 fail to comply with Title IX by not providing for the prompt and equitable resolution of sexual harassment complaints, including sexual assault complaints, against students by: 1) requiring victims to choose between filing criminal charges and filing a Title IX complaint with the Law further delay the process; and 3) using a clear and convincing evidence standard of proof in these

procedures. OCR investigated this complaint under Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. Sections 1681 et seq., and it implementing regulation at 34 C.F.R. Part 106

(Title IX), which prohibit discrimination on the basis of sex in education programs and activities that receive Federal financial assistance from the U.S. Department of Education. The Law School and University are subject to the requirements of Title IX because they receive Federal financial assistance from the Department. In its investigation, OCR examined the specific allegations in the complaint and more generally whether the Law School provided for prompt and

equitable responses to complaints of sexual harassment and sexual assault, about which it knew 1 OCR also has an open Title IX investigation of Harvard College and its response to sexual harassment, including

sexual assault, of undergraduate students. The agreement relating to the Law School does not resolve the Harvard

College complaint.

Page 2 - Dean Martha , OCR Complaint No. 01-11-2002 or reasonably should have known, and whether any failure to respond appropriately allowed for the creation and continuation of a sexually hostile environment. Background According to the most recent Harvard University Fact Book, published annually on the website students in undergraduate programs (3,281 female students and 3,378 male students) and approximately 14,500 students in graduate and professional programs; of those, the Law School enrolled 1,956 students (1,040 male law students and 916 female law students).

According to the

-Secondary Education Campus Security Clery Act data, there were 31 reports of forcible sex offenses at the University in 2012, 21 reports in 2011, and 31 reports in 2010.2 Clery data is not available independently for the Law School. The Law

Summary of Investigation

In its investigation, OCR reviewed information and documentation provided by the University, including the Law Sch complaints, including complaints of sexual violence and sexual assault. OCR interviewed University and Law School administrators and staff involved in responding to complaints of sexual harass identified as one of the Law School officials responsible for responding to student complaints of of Sexual Assault Prevention and Response, who informed OCR that the Office of Sexual Assault Prevention and Response functions as a victim advocate, available 24 hours for support and information. The office supports victims, including connecting them with the grievance process and/or with police and is also responsible for sexual assault educational awareness on the

University campus, which includes the Law School. OCR also reviewed documentation and records regarding sexual assault complaints filed with

the assault cases filed with the Law School during the time period reviewed. OCR interviewed one of the two Law School student-complainants; the other complainan

attempts to communicate through the University. OCR has concluded that the Law School has complied with Title IX regulations regarding notice of non-discrimination and the provision of notice and contact information for the Univ

Title IX Coordinator and other individuals designated as Title IX Coordinators at the Law School. However, OCR has concluded that the Law School failed to comply with the Title IX requirements for the prompt and equitable response to complaints of sexual harassment and sexual assault. The previous and current sexual harassment policies and procedures used by the Law School do not, as written and as applied in the two sexual assault cases examined by OCR, dition, the Law School has not ensured that 2 http://ope.ed.gov/security/GetOneInstitutionData.aspx Page 3 - Dean Martha , OCR Complaint No. 01-11-2002 indi viduals involved in implementing its sexual harassment policies and procedures have received training adequate to meet the requirements of OCR policy and guidance. With respect to the specific allegations raised in this complaint, OCR did not find that the Law School had either a policy or practice of requiring students to choose between filing a criminal complaint or a in the procedures, in violation of Title IX. A summary of these findi requirements of Title IX is discussed below. Legal Authority The regulation implementing Title IX, at 34 C.F.R. § 106.31(a), provides that no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity operated by a recipient. Sexual harassment that creates a hostile environment is a form of sex discrimination prohibited by Title IX.Sexual harassment is unwelcome conduct of a sexual nature. Sexual harassment can include unwelcome sexual advances; requests for sexual favors; and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence.

Sexual harassment

of a student creates a hostile environment if the conduct is sufficiently serious that it denies or 3

In determining whether a student has

been subjected to a hostile environment, OCR examines all of the relevant circumstances from an objective and subjective perspective, including: the type of harassment (e.g., whether it was verbal or physical); the frequency and severity of the conduct; the age, sex, and relationship of the individuals involved (e.g., teacher-student or student- student); the setting and context in which the harassment occurred; whether other incidents have occurred at the college or university; and other relevant factors.

The more severe the conduct,

the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the harassment is physical. For example, a single instance of rape is sufficiently

severe to create a hostile environment. Title IX also protects all students at recipient institutions

from sexual harassment, including male and female students. If a recipient knows or reasonably should have known about sexual harassment that creates a

hostile environment, a recipient must take immediate and appropriate action to investigate or otherwise determine what occurred. If an investigation reveals that discriminatory harassment 3

Sexual Violence, which is available at: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html

(April 4, 2011); for further clarification on this topic, see at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (April 29, 2014). See also Dear Colleague letter on Harassment and Bullying, which is available at

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, at

http://www.ed.gov/about/offices/list/ocr/docs/shguide.html (January 19, 2001). Page 4 - Dean Martha , OCR Complaint No. 01-11-2002 ha s occurred, a recipient must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment and, where appropriate, remedy its effects, and prevent the harassment from recurring. whether a student has complained, asked the recipient to take action, or identified the harassment a s a form of discrimination. Additionally, under Title IX, a recipient must process all complaints of sexual assault/violence, regardless of where the conduct occurred, at a minimum to the extent necessary to determine whether the conduct occurred in the context of an education program or activity of the recipient or had continuing effects on campus or in an off-campus education program or activity of the recipient. Further, once a school is on notice of off-campus sexual assault/violence against a student, it must assess whether there are any continuing effects on campus or in an off-campus education program or activity of the recipient that are creating or

contributing to a hostile environment. The Title IX regulation, at 34 C.F.R. § 106.8(b), requires recipients to adopt and publish grievance procedures providing for the prompt and equitable resolution of complaints alleging any action that would be prohibited by Title IX, including sex discrimination, sexual harassment, and sexual assault/violence. Title IX does not require a recipient to provide separate grievance

procedures for sexual harassment complaints, including sexual assault/violence complaints. A recipient may use student disciplinary or other separate procedures for these complaints; with the prompt and equitable requirements of Title IX. grievance procedures are prompt and e and practices, including the following elements that are critical to achieve compliance with Title IX: 1. notice to students and employees of the procedures, including where complaints may be filed;

2. application of the procedures to complaints alleging discrimination or harassment carried

out by employees, students, and third parties;

3. provision for adequate, reliable, and impartial investigation of complaints, including an

opportunity for both the complainant and respondent to present witnesses and other evidence;

4. designated and reasonably prompt timeframes for major stages of the complaint process;

5. written notice to parties of the outcome of the complaint and any appeal; and

6. an assurance that the institution will take steps to prevent recurrence of any sex

discrimination or harassment found to have occurred, and to correct its discriminatory effects on the complainant and others if appropriate. To ensure that students and employees have a clear understanding of what constitutes sexual violence, the potential consequences for such conduct, and how the recipient processes writing: Page 5 - Dean Martha , OCR Complaint No. 01-11-2002 1. a statement of the reci

2. adequate definitions of sexual harassment (which includes sexual assault) and an

explanation as to when such conduct creates a hostile environment;

3. reporting policies and protocols, including provisions for confidential reporting;

4. identification of the employee or employees responsible for evaluating requests for

confidentiality;

5. notice that Title IX prohibits retaliation;

6. simultaneously;

7. notice of available interim measures that may be taken to protect the student in the

educational setting;

8. the evidentiary standard that must be used (preponderance of the evidence) in resolving a

complaint;

9. notice of potential remedies for

students;

10. notice of potential sanctions against perpetrators; and

11. sources of counseling, advocacy and support.

The procedures for addressing and resolving complaints of sexual harassment should be written

in language that is easily understood, should be easily located, and should be widely distributed. For Title IX purposes, a recipient must inform the complainant as to whether or not it found that

the alleged conduct occurred, any individual remedies offered or provided to the complainant or any sanctions imposed on the perpetrator that directly relate to the complainant, and other steps the recipient has taken to eliminate the hostile environment, if the recipient finds one to exist, and prevent recurrence. Sanctions imposed after investigation that directly relate to the complainant (and that may also relate to eliminating the hostile environment and preventing recurrence) include, but are not limited to, requiring that the perpetrator stay away from the complainant until both parties graduate, prohibiting the perpetrator from attending school for a period of time, or transferring the perpetrator to another residence hall, other classes, or another school. Additional steps the recipient may take to eliminate the hostile environment include

counseling and academic support services for the complainant and other affected students. To ensure individuals can invoke these grievance procedures without fear of reprisal, Title IX

MOVR SUROLNLPV M UHŃLSLHQP IURP UHPMOLMPLQJ MJMLQVP MQ\ LQGLYLGXMO ³IRU POH SXUSose of interfering

RLPO MQ\ ULJOP RU SULYLOHJH VHŃXUHG N\ L7LPOH H;@´ RU NHŃMXVH POMP LQGLYLGXMO ³OMV PMGH M

complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or OHMULQJ´ XQGHU 7LPOH H;B 3UROLNLPHG UHPMOLMPRU\ acts include intimidation, threats, coercion, or discrimination against any such individual. Recipients should also take steps to prevent any retaliation against a student who makes a complaint or any student who provides information Page 6 - Dean Martha , OCR Complaint No. 01-11-2002 re garding the complaint and take strong responsive action when it occurs. When a recipient knows or reasonably should know of possible retaliation by other students or third parties, it must take immediate and appropriate steps to investigate or otherwise determine what occurred . At a minimum, under Title IX, a recipient must ensure that students and their parents, if appropriate, know how to report any subsequent problems; should follow up with complainants to determine whether any retaliation or new incidents of harassment have occurred; and should respond promptly and appropriately to address continuing or new problems.

Pending the outcome of an investigation, Title IX requires a recipient to take steps to ensure equal access to its education programs and activities and to

protect the complainant from further harassment as necessary, including taking interim steps before the final outcome of the investigation. The recipient should undertake these steps promptly once it has notice of a sexual harassment allegation and should provide the complainant with periodic updates on the status of the investigation. It should notify the complainant of his or her options to avoid contact with the alleged perpetrator, and allow students to change academic or living, transportation, dining and working situations as appropriate. For instance, the recipient may prohibit the alleged perpetrator from having contact with the complainant pending the results of the investigation. The specific interim measures implemented and the process for implementing those measures will vary depending on the facts of each case. When taking steps to separate the complainant and the alleged perpetrator, a recipient should minimize the burden on the complainant and thus should not, as a matter of course, remove the complainant from classes or housing while allowing the alleged perpetrator to remain. If an accused student is found responsible and a recipient determines that he/she must be separated from the complainant, it must do so in a manner that minimizes the burden on the complainant. Recipients should also check with complainants to

ensure that the interim measures are effective and, if ineffective, identify alternatives. In addition,

recipients should ensure that complainants are aware of their Title IX rights, any available resources, such as advocacy, housing assistance, academic support, counseling, health and mental health services, and legal assistance, and the right to report a crime to campus or local law enforcement. In addition, if there is an incident involving potential criminal conduct, a recipient must determine, consistent with state and local law, whether appropriate law enforcement or other rent from any law enforcement investigation, and a law enforcement investigation does not relieve a recipient of its independent Title IX obligation to investigate the conduct. A recipient thereforequotesdbs_dbs29.pdfusesText_35

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